On 23 June 2017, EDRi member Asociația pentru Tehnologie și Internet (ApTI) along with The National Association of Librarians and Public Libraries of Romania (ANBPR) and the Center for Independent Journalism (CJI) organised a meeting on the topic of the proposed EU Copyright Directive. Member of the European Parliament (MEP) Victor Negrescu took part in the event.

The event aimed at discussing the potential damage that the proposed Directive threatens to inflict on human rights and on the internet in the EU, and Europe-wide efforts to mitigate it. The two main problems of the Proposal for the Copyright Directive are the Article 11, which would introduce a “link tax”, an ancillary right for press publishers, and Article 13, which would require all EU-based online platforms that host material for their users to implement upload filters. Both measures were proposed ostensibly to protect copyright.

“Sadly, this directive didn’t start from the needs of the journalists. It started from the desire of some countries, and, implicitly, of the lobbies from these countries, to hurt their large American competitors. This proposal has been created as a deliberate attack against Google, YouTube and Yahoo. And you should be aware of the fact that this is their official position. I took part in meetings with European Commission representatives who were clearly stating that this is their official objective.”

Ironically, while the European Commission claims that the proposals attack Google, the reality is different. Google never paid ancillary copyright fees in Germany or Spain (the two countries that have ancillary copyright laws) and the upload filtering proposal would simply require everyone else to do what Google/YouTube is already doing.

Mr Negrescu continued by talking about the German ancillary copyright legislation:

“In Germany, what was tried was, indeed, to force the news aggregators to pay a levy to the publishers and newspapers for the content used as snippets. But at some point, there was talk about hyperlinks as well, because hyperlinks can contain a few words from the article. What happened ? The large aggregators, Google News in particular, shut down in Germany, causing a massive fall in the number of page views for these sites. However, they introduced in the law something that ended up disrupting their plans: the possibility for the content creator to freely provide access to their content. What happened immediately afterwards was that the large publishers offered Google free access to publish links to and snippets of their content. But they didn’t offer this to Yahoo or to the German competitors. Because there were German competitors on the market. What happens now? Google News exists and it’s offering links while their competitors, which were supposed to be helped by this law, are out of business.”

The laws failed exactly in the ways its detractors were warning they would fail. Aside from that, it is very interesting to note that ancillary copyright is, in its essence, the repeal of one of the most important exceptions to copyright law: the right of quotation. Eliminating crucial copyright exceptions such as the right to quotation create an interesting situation from legal point of view: What is going to happen when you will be able to quote a book or other type of written work, but you won’t be able to quote a news article? Or when journalists will be incentivised not to quote their sources, or to link to them. Or when a politician can ask a newspaper to withdraw consent for quotation of certain articles? This goes against basic journalistic good practices and the press as a whole will suffer for it. Instead of being the savior this Directive’s advocates claimed it would be, ancillary copyright might end up being the death knell of the freedom of the European press.

The German experience should have made everybody pay attention to the dangers of the concept of having to ask permission and to pay for quoting journalistic sources. Instead, the Spanish rushed forward and made the same mistakes.

Spain didn’t add the provision about the ability to allow free access to one’s content. Spain made payments obligatory. Google pulled out of the market. Yahoo pulled out of the market. Then, a new company appeared, and it provides just an Android application on which you can access news articles:

“It’s like Google News but in a form of a paid app. It’s being talked up as a new, interesting, innovative and dynamic company, a highly successful European startup. However, behind the scenes, it’s owned by a large German corporation, Axel Springer, that, coincidentally, is the main driver behind this type of legislation in Germany, as well as in Spain and at the European level.”

Springer, a huge German company is benefiting from the chaos in Spain, while smaller Spanish companies suffer. Maybe it is just a coincidence that a major German lobby is pushing this law. Maybe it is just a coincidence that the proposal was made under the authority of the German EU Commissioner. Maybe it is just a coincidence that the proposal has support of the German Parliamentarian that has been recently awarded responsibility for negotiating an agreement on the proposal. Maybe.

When it comes to the “link tax”, introducing a set of rules, that will be easy for citizens to bypass just by using news aggregators from outside the EU would simply mean the end of the European competitors of these services. Why Europe would want to hurt its news aggregation services and its smaller publishers is difficult for many people to understand. Failing to complete the European Copyright reform in a way that considers the point of views of all stakeholders is not only going to hurt citizens, but also artists, startups and small businesses.

Pushing the European Commission’s current proposal for the Copyright Directive through the legislative process will lead into a failure of a meaningful update of the European copyright rules.